concurring in dissent with
SHEPARD, J.Justice Shepard correctly writes that the purpose of the habeas corpus action was to terminate the guardianship. Over the years one may reasonably surmise that Patsy Revello was informed by her then husband’s parents on many occasions that they, not she, had the legal right to the physical possession of the children. Such being so I am forced to the conclusion that the opinion authored by Justice Bakes hangs on the slim thread of a technicality, and is not compatible with our civil rules of procedure, which require liberality in construction so as to secure the just, speedy and inexpensive determination of every action and proceeding. I.R.C.P. 1.
I write only to point out that the appeal record shows that the guardianship appointment was entered in the District Court of the Seventh Judicial District of the State of Idaho in and for the County of Bonneville on July 15, 1974. That order of appointment was based upon the separately filed acknowledged consents of Gary Joseph Revello and Patsy Revello, respectively dated the 27th day of May, 1974 and the 10th day of May, 1974. The consents are identical. Each contains the following statement:
“The undersigned does further acknowledge and agree that following their appointment as Coguardians, John Joseph Revello and Lucia Marchetti Revello, his wife, shall continue to serve in such capacity unless and until the Court making the appointment shall direct or approve such other or different arrangement as the Court deems proper.” (Emphasis added.)
“The Court,” of course, is the court shown in the caption of the consents, and is the identical court which entered the order of appointment, to-wit, the District Court, Seventh Judicial District, Bonneville County, Idaho.
It was in this particular district court that Patsy Revello sought another or different arrangement, specifically the termination of the guardianship and the return to her of her children.
It was the proper court, being the court which had made the appointment, and in fact the only court in the county wherein the children lived.
The pleading filed by the grandparents Revello, presumably responsive to Patsy’s allegation that their restraint of the children was not legal, set up the fact of the consent guardianship in district court, attaching the copies of the consents and the order, adding to the title of the court “Magistrates Division A.” However, this quoted *840language appears nowhere on the consents or on the order.
Their pleading did not allege or claim that Patsy’s action was barred by the prior order or that it was a collateral attack. On the contrary, the grandparents joined issue on Patsy’s fitness to have custody and the best interest of the children.1
There is nothing in the record we review which shows that the grandparents ever claimed that the District Court, with Judge Reynold George presiding, was not the proper forum for a hearing the purpose of which was to ascertain if Patsy Revello was entitled to the return of her children. Not only was that issue not urged upon Judge George; in two respondents’ briefs filed in this Court it has not here been raised. It ill behooves this Court to decide an important case on an issue not raised in this Court or in the court below.2
I concur with Justice Shepard’s reasoning for reversing the district court judgment. The majority route, which would nullify completely the trial below, and this appeal, and require Patsy to begin anew, does not comport with my views on conserving dwindling judicial resources, and is not in the best interests of the children.
. “Respondents further allege that the natural parents have abandoned, waived, surrendered, transferred and/or forfeited their right to demand custody of said children, and said parties are not fit and proper persons to have the custody of said children at this time, and that it is in the best interests of the welfare of said children that their custody and control remain with Respondents.”
. I am not unmindful that the guardianship order entered in district court appears to have been signed by a magistrate instead of a district judge. Magistrates are, of course, judges in the district court, and-have varying jurisdictions throughout the seven districts of the state. Ordinarily they are confined to handling cases in the magistrate division of the district court, but this is not always so. Nothing in the record before us shows that the magistrate here exceeded his authority by entering the order which was entered. If he did so, then it was a void order. I think, however, it little matters, because Judge George is a district judge and, although our system may not allow a magistrate to handle all matters in a district court, there is no curtailment preventing a district judge from so doing. Judge George saw Patsy’s petition seeking to regain her children; although he could have, perhaps, referred it to a magistrate, he could also hear it, and in the interests of expeditious administration of justice, properly did so.
The magistrate who entered the consent order for the consent guardianship had retired from his position in January, 1975, long before Patsy’s action was filed. Judge George undoubtedly had the authority to refer this cause to a magistrate, but the magistrate would not have had any benefit of background of the case that the retired magistrate had from handling the original consent proceeding. Judge George made the correct determination — to take on the task himself, as a district court, of deciding the important question of whether the children should be returned to their mother. The alternative of leaving the decision to a magistrate with the attendant delay of an appeal within the district court to a district judge, and then on appeal to this Court, is far less acceptable where young children are concerned. Compare the time lapse of 30 months in Mitchell v. Pincock, 99 Idaho 56, 577 P.2d 343 (1978), to the time lapse of 15 months in Andersen v. Crapo, 99 Idaho 805, 589 P.2d 957 (1979), from the first filing in the habeas corpus petition until the ultimate disposition in this Court.
In this Court we are, by virtue of our supervisory administrative authority over the entire judicial system, well aware of dwindling judicial resources and should never search out technicality as a predicate for preventing a decision on the merits where the case brought to us has been well presented by the parties — obviously wanting a decision on the merits, not a dismissal with directions to start it all over.